A declaration of toleranceIn 313 Christians finally won their place in the ancient world with the Edict of Milan.Mike Aquilina | 25 October 2013comment 2 | print |

Edict of Milan

This year marks the 1700th anniversary of the Edict of Milan, by which the Emperors Constantine the Great and Licinius established tolerance for Christianity in the Roman Empire. MercatorNet asked Mike Aquilina, an expert in the early history of Christianity, how this momentous step came about, and what relevance it has for the debate on religious freedom today.

MercatorNet: Celebrations have been rather low-key, but this year is the 1700th anniversary of the Edict of Milan in 313. What’s it all about?

Mike Aquilina: What we’re really celebrating is the first appearance of the notion of religious liberty. The so-called Edict -- it may have been a letter -- marked the agreement between Constantine I, who ruled the western lands, and Licinius, who controlled much of the East, to put a stop to the persecution of Christians. They could have presented this in many ways, but they chose to speak in terms of widespread tolerance. "We have also conceded to other religions the right of open and free observance of their worship for the sake of the peace of our times, that each one may have the free opportunity to worship as he pleases. This regulation is made that we may not seem to detract from any dignity of any religion." It's safe to say that these were revolutionary ideas, and their influence, at least in Western Christian lands, has been profound.

What was the situation before the Edict?

For two and a half centuries, Christians had endured intermittent persecution, which was occasionally quite intense. Sometimes there were long stretches between the imperial crackdowns. But, even in times of peace, Christians lived with the memory of persecution as a recent unpleasantness. They knew that there was substantial legal precedent for the suppression of the Church and the making of martyrs. They knew that anti-Christian violence, outside the law, probably wouldn’t be punished. In the years leading up to the Edict, the Church had endured the empire’s most thoroughgoing persecution to that point in history.

What motivated Licinius and Constantine to take such a momentous step?

If they’d had Facebook accounts, they could honestly have said, “It’s complicated.” Both men had many motives for their action, and their motives were mixed. Both had family members who were practicing Catholics, and both seem to have had some level of personal interest in the faith, but at this remove it’s hard to say how far that went. They also were shrewd politicians, and they could see which way the wind was blowing. The sociologist Rodney Stark, in his book Cities of God, has demonstrated that, by the time of the Edict, all the empire’s major urban centers had majority- or plurality-Christian populations. The research of Thomas A. Robinson seems to indicate that the rural populations had been similarly Christianized. In every sector of society — military, education, commerce, government — Christians were present and making great contributions. In pragmatic terms: persecution was counter-productive. Why did Constantine and Licinius do what they did? We’ll probably never know. But their reasons were many, varied and, I think, sound.

One of Constantine’s court intellectuals, Lactantius, wrote eloquently in defence of religious freedom – “Torture and piety are quite different things; truth cannot be joined to force or justice to cruelty.” Was he an important influence in shaping religious toleration?

Probably. He was Constantine’s advisor. He tutored Constantine’s son. And he was a bestselling author. He was raised in the traditional Roman religion and served as an advisor to the emperors. Lactantius converted to Christianity as an adult, during a time of persecution, and he suffered for his decision. By the time Constantine raised him from obscurity, he was a respected Christian thinker, an old man who had earned a hearing and could make a sound and sympathetic case for tolerance. His placement seems -- frankly, providential.

So the Edict of Milan didn’t actually make Christianity the religion of the Roman Empire?

No, that came later with Theodosius — in less tolerant times and less tolerant terms.

Afterwards Julian the Apostate tried to reverse the policy of toleration? Did that shape subsequent views of religious freedom?

It certainly shaped subsequent history. Julian banned Christians from teaching in the universities. He used the imperial treasury to bankroll a pagan religion he created in the image and likeness of the Christian Church. It had a hierarchy, Scriptures, liturgy, and institutional charities — all hallmarks of Catholicism. His project failed, as he died young on the battlefield. His successors were Christians who were determined not to let such backsliding happen again. They relied, however, on the methods of Julian rather than Constantine, imposing unity and uniformity by coercive means.

Did the early Fathers of the Church grasp the importance of religious freedom?

They were all over the map. The early apologists argued for it, because they were misunderstood and marginalized. They just wanted a fair hearing. Some later Fathers, in the wake of Julian, wanted to shore up the Church’s position, and so they threw their support behind coercive measures that favored Christianity.

After such a promising start, how did Europe revert to coercion of dissenters and heretics?

Again, it’s complicated. As the first millennium came to an end, the western lands watched with alarm as the east fell to Islam. Western leaders, in Church and state, placed a premium on unity against a common enemy. Muhammad himself was viewed by the Fathers as a Christian heretic, and they make a persuasive case.

Also, as the Empire fell apart, the Church, in many places, became the state. It was the only cultural force with the vision, means, and motives to establish and maintain order. Thank God someone was there to do the job — but it did blur a lot of lines. The west had avoided some of the temptations of the east. In Constantinople, for example, the patriarchs were too often willing instruments of the emperors. In the west, perhaps too often the bishops were the governors — and, as time wore on, the governors became the bishops.

Do you think that the Edict of Milan has any relevance to contemporary debates over the notion of religious freedom?

Peter Leithart argues that Constantine’s view is actually healthier than the Enlightenment and post-Enlightenment schemes, which sometimes display shocking intolerance as they demand the suppression of distinctive doctrines and practices. Constantine’s later edicts -- to the Palestinians and to the Eastern Provincials -- show even more mature doctrine, put sometimes in poetic terms. “Let no one disturb another. Let each man hold fast to that which his soul wishes. Let him make full use of this.”

The truth is that the modern world makes more Christian martyrs per year than the Roman Empire ever did. And even modern democracies are growing increasingly hostile to any religious expression that dissents from government-imposed standards.

Obama's AFA Oath OmissionsThe End Run on Faith in the MilitaryBy Mark Alexander • October 31, 2013 "While we are zealously performing the duties of good citizens and soldiers, we certainly ought not to be inattentive to the higher duties of religion. To the distinguished character of Patriot, it should be our highest glory to add the more distinguished character of Christian." --George Washington's General Orders (1775)

Officer's Commissioning Bible

Editor's Note: This column is a substantial update on The Patriot Digest report last week regarding the Obama administration's effort to remove "So help me God" from all military oaths.

I began this week as I usually do, with a Monday morning visit to my 90-year-old father, a retired naval aviator and member of the Greatest Generation. He's always interested in current events, especially the latest on what he accurately labels "Obama's socialist effort to nationalize healthcare."

In a discussion with him about my column topic, the real story behind an effort to remove "So help me God" from an oath at the Air Force Academy, he smiled and said, "I have something for you." He disappeared for a minute and returned with a small pocket Bible, which was presented to him at his naval commissioning ceremony 70 years ago. He had come across this little New Testament while cleaning out a drawer, and he set it aside knowing I would appreciate it.

And appreciate it I do.

On a dedication page prior to the title page, there was a printed inscription from Franklin D. Roosevelt:

"As Commander-in-Chief, I take pleasure in commending the reading of the Bible to all who serve in the armed forces of the United States. Throughout the centuries men of many faiths and diverse origins have found in the Sacred Book words of wisdom, counsel and inspiration. It is a fountain of strength and now, as always, an aid in attaining the highest aspirations of the human soul."

Indeed.

This past weekend, you may have heard news reports about the Air Force Academy being pressured to remove "So help me God" from its Cadet Honor Oath.

What you have not heard is that on the page facing the Honor Oath in "Contrails," the Academy's official handbook, "So help me God" has already been removed from the more important Cadet and Officer oaths. (Click to View)

As I first reported last May in "Obama's Frontal Assault on Faith," until 2011, the AFA handbook contained "So help me God" in bold letters after the Cadet and Officer oaths. However, under the watch of former AFA Superintendent, Lt. Gen. Mike Gould (who retired in July 2013), those words were removed from the Class of 2015 handbooks, and are absent in all subsequent year editions of Contrails. (Last we checked, the cadet and officer oaths at the Naval Academy and West Point had not been altered.)

In 2012, when I asked the AFA's Public Affairs Office who had ordered the removal and why, the PAO dodged the question for two days, then on the third request responded tersely that I could file a "Freedom of Information Act" request if I wanted to know anything more. In other words: "Take a hike." (An FOIA for all communications related to this omission is being processed.)

The current challenge to the Cadet Honor Oath wording was filed by ultra-leftist Michael Weinstein by way of his so-called "Military Religious Freedom Foundation" (MRFF). Ostensibly, Weinstein's objection relates to a complaint about a poster that listed the Cadet Honor Oath with its closing words, "So help me God."

But Weinstein's target is much bigger than the AFA Honor Oath. Read on...

Weinstein, who was tapped by Obama earlier this year to "consult" with DoD on faith expression in the military, is little more than a proxy for the Obama regime, a surrogate doing the bidding of the most faith-intolerant administration in the history of our Republic. According to the Washington Post, Weinstein claimed that Christian "proselytizing" is a "national security threat," adding, "What is happening is a spiritual rape. ... It is sedition and treason. It should be punished." 1.

Of course, if any military officer publicly suggested that this all-out attack on religious faith was part of his commander in chief's agenda, they would face a court-martial. However, off the record, I have spoken to many command-level officers who believe this is precisely Obama's aim.

Weinstein, himself an AFA graduate (Class of '77), and author of "One Man's War Against an Evangelical Coup in America's Military," has been an enemy of public faith expression for his whole career. He first sued the Air Force in 2005 for failing to prevent "religious proselytizing," claiming:

"What you've got is a lusty and thriving religious intolerance that is objectively manifesting itself in prejudice and discrimination and is obliterating the First Amendment, civil rights and the US Constitution. There are senior people that view evangelical Christianity at the Air Force Academy the way that you and I would view gravity. Pick up a pen and drop it and it falls on the desk. Well, it just exists, it's gravity."

But U.S. District Judge James Parker dismissed the case, noting:

"No Plaintiff claims to have personally experienced any of the things described under 'Factual Allegations' ... while at the Academy or after leaving the Academy. Not a single Plaintiff has alleged any personal factual situation that has allegedly impinged on that Plaintiff’s constitutional rights since the Plaintiff left the Academy."

Weinstein got little traction for his faith persecutions until Obama's election in 2008, which paved the way for him to become the primary nemesis of faith expression in the military.

Within a month of Obama's inauguration in 2009, Weinstein met with Air Force Chief of Staff Norton A. Schwartz, who was confirmed by the Democrat-controlled Senate on August 12, 2008 (and served until August 10, 2012, when he was replaced by Gen. Mark A. Welsh). Weinstein said that Schwartz "acknowledged that there [was] a problem" regarding religious freedom in the military.

To get a sense of the depth of Weinstein's hatred of our military's faith traditions, later in 2009 he blamed the Fort Hood massacre by Islamist Nidal Malik Hasan on proselytizing by "fundamentalist Christians."

In 2010, the year "So help me God" was removed from the AFA Officer and Cadet oaths, Weinstein said he had developed a cozy relationship with then-AFA

Superintendent Lt. Gen. Mike Gould. Weinstein claimed he and Gould devised a secret codeword to ensure he could have quick access to Gould at any time. "We have our own bat-signal," he boasted. (For the record, I have met Mike Gould through several national security briefings and would have a difficult time believing that he and Weinstein were in collusion.)

That was also the year Weinstein applauded Obama's repeal of "Don't Ask, Don't Tell," which significantly constrained any religious views to the contrary. 2.

In 2011, Weinstein demanded and received an apology from AFA Commandant of Cadets Brig. Gen. Richard Clark for authorizing cadet support of "Operation Christmas Child," which assembles and fills millions of shoeboxes with toys, school supplies and other gifts for impoverished children in 130 countries. Weinstein objected because OCC places a Christian tract in those boxes.

In 2012, Weinstein pressed the Pentagon to end the sale of military-themed Holman Christian Standard Bibles, claiming they were a "national security threat."Clearly, Weinstein and the MRFF are dedicated to freedom from religion, not our constitutionally enshrined freedom of religion.

So, what is the Obama/MRFF strategy at the Air Force Academy?

Given that AFA administrators have already removed "So help me God" from the cadet and officer oaths in 2011 -- for reasons the AFA will not disclose -- if Weinstein pursues legal action, it will be difficult for the AFA to argue for retaining "So help me God" in any oath. And, if Weinstein "wins" a legal challenge against the AFA, he will undoubtedly pursue "domino effect" rulings to amending oaths in the other Service Academies -- which will inevitably cascade throughout the service branches.

My colleague, Lt. Gen. (Ret.) William "Jerry" Boykin, says of the administration's effort to oppress religious expression, "The very troops who defend our religious freedom are at risk of having their own taken away. The worst thing we can do is stop Soldiers, Sailors, Airmen and Marines, especially the chaplains, from the free exercise of their faith."

At present, AFA leadership is attempting to sidestep Weinstein's complaint by suggesting the inclusion of "So help me God" in the Honor Code will be voluntary. Lt. Gen. Michelle D. Johnson, Academy Superintendent, stated:

"We work to build a culture of dignity and respect, and that respect includes the ability of our cadets, Airmen and civilian Airmen to freely practice and exercise their religious preference -- or not. So, in the spirit of respect, cadets may or may not choose to finish the Honor Oath with 'So help me God.'"

But Weinstein is not content with that solution, and responded:

"The Air Force Academy is a constitutional train wreck when it comes to religious rights and freedoms. We wouldn't trust them to get the word out on an organizational picnic, much less something of this magnitude. [Tying the oath] to a religious test violates the no-establishment clause of the Constitution."

But the fact is, "So help me God" is already elective in all military and civilian oaths. While 5 U.S.C. § 3331 specifies the inclusion of those words, it is understood that this inclusion is subordinate to our Constitution's Article VI prohibition of any religious test for public office. However, it is no longer elective in the AFA Cadet and Officer oaths because the words have already been omitted!

Dr. Hans Mueh (Brig. Gen., Ret.), who was tasked in 1984 with formulating the Honor Oath, said, "To add more seriousness to the oath, we decided to mirror the commissioning oath and add the words, 'so help me, God.'" But again, the words have already been omitted!

However, according to the most recent Air Force Instruction issued by the Secretary of the Air Force, section 1.4. Oath, subsection 1.4.1 Enlistment Oath and 1.4.2 Oath of Office (Commissioning Oath) both specify "So help me God." Further, the SecAF orders, "Compliance with this publication is mandatory."

At best, the AFA is not in compliance with the SecAF's mandate regarding oaths, and any military officers who approved the oath alterations are likely subject to prosecution under the Uniform Code of Military Justice, Article 92 (IX), "Violation of a Lawful General Regulation/Order."

At worst, somebody has provided Weinstein with a layup, a legal "gimme," which he can ultimately parlay into the removal of "So help me God" from every military oath. So the question remains, who ordered the removal of "So help me God" from the 2011 cadet handbook, and why?

The Patriot is pursuing an answer to that question -- and we will not back off until we get the truth.

Obama's surrogates may attempt to pin blame on a committee of AFA officers and cadets that reviews Contrails each year for any minor changes to protocol or training, but there is little chance that a major change such as the altering of the officer and cadet oaths would have been the work of this committee -- or that the PAO would have deferred to an FOIA -- or that AFA leadership would be addressing "So help me God" in the Honor Oath without noticing its absence in the Officer and Cadet oaths. Frankly, AFA leadership may have been waiting -- and hoping -- for a third-party objection in order to avoid rebuke from their CINC. If so, their wait is over.

In the meantime, Obama and his Leftist cadres should heed this formative advice from President George Washington: "Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths..."

1. (Under the pretense of "religious tolerance," Barack Obama's administration has been quietly advancing his mandate to remove all expression or manifestation of faith, particularly Christianity, from government forums -- first and foremost, the U.S. military, where he has the most direct authority. His civilian "leaders" at DoD have ramped up that eradication, even threatening UCMJ charges against military personnel whose expression of faith might be interpreted as "proselytizing." Eradicating references to God in military oaths is part of Left's larger objective to replace Rule of Law with the rule of men -- because the former is predicated on the principle of Liberty "endowed by our Creator." Obama's administrators constantly look for ways to undermine Rule of Law by driving wedges between our Liberty and its inherent foundational endowment.)

2. (One of Obama's earliest campaign promises was to repeal the "Don't Ask, Don't Tell" proscription against open homosexuality in the military ranks. On December 22, 2010, Obama signed that repeal after it had been passed by his outgoing NeoCom House majority and seconded by his Demo-controlled Senate, just weeks before Tea Party Republicans, who decimated the Democrats in the 2010 midterm elections, took over the House. At the signing, Obama declared, "This law will strengthen our national security and uphold the ideals that our fighting men and women risk their lives to defend.")

THE FOUNDATION"Let it simply be asked, where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths…" George Washington NATIONAL SECURITYAnother Victory for Liberty

Earlier this week, we reported on the third instance in which military training curriculums identified Christians and Tea Party organizations as "hate groups." Once is an isolated incident and twice might be coincidence, but three times is a pattern.

However, we note that these briefings were not DoD-authorized briefs, but prepared by local personnel who obviously are Obamaphiles.

One of those briefings took place at Fort Hood, where, as you'll recall, Islamist Nidal Malik Hasan murdered 13 people and an unborn child while yelling "Allahu Akbar." As Hasan aptly demonstrated, there is a need for legitimate "terrorist profiling."

The Ft. Hood briefer targeted such "radical" Christian groups as the American Family Association -- a pro-family group that only the most jaded Obamaphile would describe as "radical," or someone too ignorant to distinguish the fact that the AFA is not a "domestic hate group." The information on AFA was from the ultra-Leftist Southern Poverty Law Center, which lists most pro-family Christian groups under its "hate" umbrella.

Fortunately, it did not take long for some briefing attendees, who were smart enough to recognize that AFA is not a terrorist group, to expose this nonsense. Responding to objections to this and other briefings targeting conservative and Christian groups as a threat, the Department of Defense quickly issued a halt to the use of SPLC information, issuing a directive to restrain its security briefers and "Emphasize that neither DoD nor the Army maintain or publish any centralized list of specific organizations considered to be extremist in nature or in opposition to the Army's core values."

No sooner had that fire been contained than word arrived on a 600 page Defense Equal Opportunity Management Institute training manual that "healthy, white, heterosexual, Christian" men -- members of what the text calls the "White Male Club" -- hold an unfair advantage over other service members. "Simply put, a healthy, white, heterosexual, Christian male receives many unearned advantages of social privilege, whereas a black, homosexual, atheist female in poor health receives many unearned disadvantages of social privilege."

Meanwhile, The Patriot is still aggressively pursuing answers about the removal of "So help me God" from Cadet and Officer oaths at the Air Force academy, an apparent subterfuge by the Obama administration to provide a proxy, Michael Weinstein, with a layup, a legal "gimme," which he can ultimately parlay into the removal of "So help me God" from every military oath.

Stephen Colbert recently treated his viewers to a funny spoof of the claim that for-profit corporations may have religious-freedom rights. Corporations "follow the one true profit," his joke went. Mr. Colbert was responding to a federal appellate court ruling that the contraception-coverage mandate in the Affordable Care Act violated the religious freedom rights of Hobby Lobby, a crafts store that objected to covering contraceptives that would prevent the implantation of a fertilized egg.

The appellate courts are deeply divided on corporate religious freedom. The Supreme Court has now agreed to review two cases—Hobby Lobby Stores, Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius, which reached the opposite conclusion—to resolve the latest health-care imbroglio. The idea that for-profit corporations have religions-freedom rights is less silly than it may sound, but it also is not likely to start an avalanche of exemptions.

The corporations in these cases both sued under the Religious Freedom Restoration Act, which Congress enacted in order to expand religious freedom rights after the Supreme Court had restricted them in a 1990 case, and under the First Amendment's Free Exercise Clause. The central question is whether a corporation can be a "person" for the purposes of the Religious Freedom Restoration Act, and whether the Free Exercise Clause applies to for-profit corporations.

Although the Supreme Court has never directly confronted the question of whether ordinary corporations can have religious-freedom rights, it is quite likely to conclude they can. Corporations often are treated as "persons" for legal purposes; indeed, many laws explicitly define "person" to include corporations as well as individuals. This doesn't mean corporations are persons for all purposes, as a California driver found out last year when he tried to get out of a ticket for driving in a high-occupancy-vehicle lane by pointing to the corporation documents in the passenger seat. But for some purposes they are.

The courts that have rejected corporate religious freedom point out that corporations like Hobby Lobby or Conestoga "do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors," as the trial court in the Hobby Lobby case had put it. But one can say the same thing about churches and other religious organizations, which are usually organized as corporations.

Bypassing the corporate freedom issue, some argue that any religious freedom rights simply "pass through" the corporation to the shareholders. After all, with both Hobby Lobby and Conestoga, the corporation's stock is held by a single family of devout Christians. But the corporation is the one that is required to satisfy the mandate that its health-care plan cover the objectionable contraceptives or that it pay a very stiff fine ($1.3 million per day for Hobby Lobby).

The federal appellate court in Washington, D.C., recently tried another tack, holding that corporations lack religious freedom rights, but that the health-care law's mandate infringed the shareholders' rights in that case. But this conclusion was backward. The real harm was to the corporation; any harm to the shareholders was indirect.

Although some might worry that a massive wave of corporate religious freedom claims would follow a Supreme Court ruling, this is unlikely. Hobby Lobby would probably qualify, since its statement of purpose affirms the Green family's commitment to "honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles." But a corporation whose managers happen to be religious, but which lacks a similarly clear policy, would not.

As cases arise in the future, courts would need to determine whether the corporation does in fact operate on religious principles. But the same question arises when an individual asserts religious-freedom rights, and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not. Among large corporations, perhaps Chick-fil-A would satisfy such a test, but very few others would.

Religious freedom rights also would not protect a corporation from every law that offends the corporation's principles. The Supreme Court held in 1982 that an Amish business could not forgo making Social Security contributions, despite the owner's sincerely held religious objections, because an exemption would undermine the overall system. The government would still be free to make this kind of argument in defense of subjecting religious for-profit corporations to the health-care act's contraception mandate.

Corporations are not like other people. They are persons for the purposes of some rights but not others. In the coming months, there is a very good chance the Supreme Court will conclude that one of the rights that some for-profit corporations do enjoy is a right to religious freedom.

Mr. Skeel, a visiting professor at New York University School of Law, is the author of "The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences" (Wiley, 2011)

Okla., thanks to its argument for religious monuments on public display, now must accept the Satanic Temple and their memorial. The law allows them to put it right next to the 10 Commandments, if they so desire. Next week, who knows, perhaps the Satanic Temple will get the opportunity to name a new public school.

1) I've seen the display of the Ten Commandments pass judicial muster on the basis of their being historical basis for our law, but don't know whether that applies to this case here.

2) I suspect our FF had this in mind when they said the system they designed was for a virtuous and god-respecting people

3) The article makes the usual misinformed argument about wall of separation of church and state (i.e. Thomas Jefferson's letter in 1823 IIRC, written and to be understood in the context of the Bill of Rights applying at the time only to the Federal government) and the exclusion of God from the public sphere-- which is readily refuted by looking at State constitutions and practices at the time.

On Friday, Administrative Law Judge Robert N. Spencer ruled that the owner of Masterpiece Cakeshop near Denver must bake for and sell cakes to homosexual couples for their same-sex ceremonies. Last year, the Christian bakery owner turned away two men who "married" in Massachusetts but wanted a reception in Colorado. FRC's Tony Perkins offers this rebuttal: "The President's HHS mandate insists on the same kind of viewpoint capitulation. ... Americans are being required to do something the Founders never intended: separate their values from their vocations. If Jack Phillips, Barronelle Stutzman, Elaine Huguenin, or Hobby Lobby want to serve the Lord full time, the First Amendment encourages it. What it doesn't encourage are judges like Spencer, who trample Americans' rights as a way of inventing others."

On Friday, Administrative Law Judge Robert N. Spencer ruled that the owner of Masterpiece Cakeshop near Denver must bake for and sell cakes to homosexual couples for their same-sex ceremonies. Last year, the Christian bakery owner turned away two men who "married" in Massachusetts but wanted a reception in Colorado. FRC's Tony Perkins offers this rebuttal: "The President's HHS mandate insists on the same kind of viewpoint capitulation. ... Americans are being required to do something the Founders never intended: separate their values from their vocations. If Jack Phillips, Barronelle Stutzman, Elaine Huguenin, or Hobby Lobby want to serve the Lord full time, the First Amendment encourages it. What it doesn't encourage are judges like Spencer, who trample Americans' rights as a way of inventing others."

As I said before same sex marriage is just cover for using the force of law to punish those that disagree with the radical homosexual agenda.

This week Justice Sonia Sotomayor issued an unusual injunction merely hours before the Affordable Care Act's birth-control mandate was supposed to apply to an order of Catholic nuns. The Justice Department replied on Friday, and the Administration's disdain for religious conscience still retains the power to shock.

Later this term the Supreme Court will hear arguments related to the ObamaCare requirement that all employer health plans must furnish contraception or else pay a tax penalty, but those cases involve corporations. The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its "accommodation" for religiously affiliated institutions like parochial schools, hospitals and charities.Enlarge Image

Mother Patricia Mary walks in the chapel at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver, Colo., Thursday Jan. 2, 2014. Associated Press

The problem is that to qualify under the "accommodation," religious organizations must sign a legal contract with their insurer certifying that the religious organizations refuse to subsidize contraceptive services. "This certification is an instrument under which the plan is operated," the contract notes, then informs the insurer of its "obligations" under the rules.

Those include a command that the insurer "shall provide" contraception to all enrollees, supposedly independently and for free. The political point of the accommodation was to pretend that the costs of contraception or abortifacients are nominally carried by a third-party corporation, but the insurers are really only the middle men. The Little Sisters thus argue that signing the certification contract directs others to provide birth control in their place and makes them complicit.

His reason is the idiosyncratic insurance situation of the Little Sisters. They belong to a special type of insurance collective known as a church plan, also run by a Christian order. This plan will itself also qualify for the accommodation, in the same way as a Christian soup kitchen.

The Administration never envisioned that a religiously affiliated organization would contract with a religiously affiliated insurer, probably because there are so few church plans. They promised in a lower court to close the loophole in a future rule-making. But for now, the double accommodation means that in practice the church plan will not be required to cover and pay for birth control on behalf of the Little Sisters.

For that reason, the Administration should have simply let Justice Sotomayor's injunction stand. The Administration could have honored the Little Sisters' belief that they are harmed because empowering a third party to provide contraception is the sin. Then it could later close the loophole.

But the White House wants to make an ideological statement, and so Mr. Verrilli is in effect telling the nuns that they don't understand their own church teachings and that signing the contract doesn't really tread upon their religious beliefs.

The Little Sisters have another option, Mr. Verrilli continues. Employers "are not required to offer group health plans in the first place." They are afforded "a 'choice' between two legal options: provide a group health plan or risk payment of the tax." This is a baleful echo of Chief Justice John Roberts's constitutional reasoning in the ObamaCare cases last year, but for the Little Sisters it would mean cancelling their plan or paying out an annual $2.5 million fine—more than a third of their budget.

Perhaps such coercion is why Justice Sotomayor, who fields petitions from the Colorado federal court system, issued her writ. Injunctions from the High Court are rare, all the more because both the district court and the Tenth Circuit Court of Appeals denied emergency relief. Justice Sotomayor will now decide whether to extend or vacate her temporary order, or to bring the case to the full Court. A ruling could also apply to the dozens of religious plaintiffs that don't use church plans.

This case is simply a raw assertion of state power directing the religious to follow orders. Thus ObamaCare forces women who have taken a vow of chastity and minister for the dying to implicate themselves in what they consider to be grave moral wrongs.

Here's a less than enthusiastic word of thanks to America's college administrators. Close to 60% of campuses in 2013 substantially abridged the First Amendment rights of faculty and students. But at least that's an improvement from 75% in 2007—the year the Foundation for Individual Rights in Education (Fire) produced its first comprehensive assessment of the state of free speech on campus.Related Video

Assistant books editor Sohrab Ahmari on a new report that shows a majority of America's colleges abridge First Amendment rights. Photo: Getty Images

The foundation's latest report shows how elusive the promise of open inquiry remains for most American students. Fire surveyed 427 public and private four-year colleges and says it found 250 speech codes that are facially unconstitutional. These campus policies take such a broad view of speech as "harassment" that any controversial viewpoint is potentially punishable.

Alabama's Troy University, a public institution, is one of two schools that earned the dubious honor of having promulgated Fire's 2013 "Speech Codes of the Year." (The other is Virginia State University.) Troy's code of conduct prohibits "any comments or conduct consisting of words or actions that are unwelcome or offensive to a person in relation to sex, race, age, religion, national origin, color, marital status, pregnancy, or disability or veteran's status."

Note how this definition of offensiveness hinges solely on an accuser's subjective feeling, though the First Amendment doesn't distinguish between offensive and inoffensive speech. Many schools also limit student expression to laughably small "free-speech zones," which often must be reserved weeks or months in advance and after navigating labyrinthine rules.

Some schools even make it difficult for students to learn what their speech-related policies are. Fire reports that Texas Tech University's Acceptable Use Policy, governing the use of campus IT systems such as email, is password-protected. At Connecticut College, prospective parents and students wishing to learn how the school handles so-called bias incidents will have to wait until enrollment, since the school's "Bias Incident Protocol" is hidden behind a login page—as is the Student Handbook.

Colleges ought to be beacons of free inquiry, but too many continue to punish politically incorrect speech.

The New Year's Eve emergency injunction protecting the Little Sisters of the Poor from ObamaCare's birth-control mandate was unusual enough. The Supreme Court rarely grants such relief, and the order was issued by liberal Justice Sonia Sotomayor. But the permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still—and a rebuke to the Obama Administration's bullying conception of religious liberty.

The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.

The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.

The High Court's order bars the Administration from imposing fines on any nonprofit that declares a religious identity and objects to the mandate. It doesn't go to the merits or relate to the separate contraceptive mandate cases that the Court will hear in March. Yet the fact that such an extraordinary intervention was necessary speaks volumes about the Administration's ideological intolerance.

Lee E. Goodman: The Feds Flirt With Reining in TV TalkA TV station invites two candidates to debate. Has it made an illegal contribution to their campaigns?By Lee E. GoodmanFeb. 4, 2014 7:25 p.m. ET

David Gregory and George Stephanopoulos should be concerned. The same Federal Election Commission that represented to the Supreme Court that it could ban books now claims the authority to censor Sunday-morning news programs.

This startling assertion of government power became public in December when the FEC released an enforcement file in the case of a Boston television station's regular Sunday-morning news program, "On the Record." The station, WCVB, had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on "On the Record" in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.

Another candidate (a libertarian) who was not invited filed a complaint alleging that the value of WCVB's production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited. Corporate contributions to federal candidates are illegal and people who make them face stiff fines, injunctions, and can even go to prison.

The Federal Election Campaign Act, which established the FEC, regulates money in federal campaigns to protect American citizens from corrupt politicians. It also expressly forbids the agency from regulating the press. Congress enacted this "press exemption" to protect the profoundly important First Amendment right of the press to inform the public about campaigns and candidates without government interference.

WCVB invoked the First Amendment and the campaign act's press exemption. When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both. The FEC proceeded to sit in judgment of the news directors' editorial criteria for choosing the candidates to appear to debate on the station's Sunday morning program. Ultimately the FEC decided that the editorial criteria were sufficiently objective and thus the station had not made an unlawful corporate contribution. It dismissed the case.

Based on this outcome, Messrs. Gregory and Stephanopoulus might rest easy. They shouldn't, which is why I took issue with the FEC's ostensible beneficence. A decision to approve implies the power to disapprove. And in the case of FEC regulatory authority over corporate contributions, the power to investigate, punish and even enjoin is the power to censor news programs like "On the Record," "Meet the Press" and "This Week." The upshot of the WCVB decision is that every television newsroom must look over its shoulder whenever it invites two or more candidates to a joint appearance.

Tellingly, Congress forbade even the Federal Communications Commission, an agency expressly empowered to regulate broadcast television stations, to dictate such news judgments. But the FEC appears to be intent upon meddling in TV newsrooms.

History is rife with government efforts to disrupt, investigate and even silence dissenting published opinion. From early colonial times when royal governments punished and shuttered printers critical of royal governors, to film-review-board censorship, attempts to enjoin the printing of the Pentagon Papers and, more recently, government prying into journalists' telephone records, government power has proved to be a dangerous threat to freedom of the press.

The judgments of six FEC commissioners—who are by law appointed by partisan affiliation—can be biased too. A few examples from recent years (several predating current commissioners' tenures) are revealing. The FEC voted unanimously in 2008 to recognize a technology company's (Melothe Inc.) right to launch a new Web campaign channel devoted exclusively to pro-Democratic coverage, endorsements of Democratic candidates and even solicitations for contributions on behalf of Democratic candidates. Six commissioners also voted to recognize former Democratic Sen. Jean Carnahan's right to launch an online publication in 2005 devoted exclusively to pro-Democratic commentary free from regulation.

But in 2010, three commissioners voted to find that "The Sean Hannity Show" violated the law when the radio program endorsed a Republican candidate for Congress and emailed its endorsement and a solicitation of support to the show's distribution list.

Likewise, there were six unanimous votes in 2004 on the commission to dismiss complaints against Michael Moore, Harvey Weinstein and their production companies for expending corporate funds to produce, advertise and exhibit the anti-Bush editorial film "Fahrenheit 9/11," but only four votes in 2010 to recognize the press rights of Citizens United to make conservative documentary films. Also in 2010, the commission deadlocked three to three when filmmaker RG Entertainment Ltd. sought to advertise and distribute the conservative documentary "I Want Your Money."

The point is that government officials cannot be trusted to regulate journalists fairly and without bias. For precisely that reason, Congress prohibited the FEC from regulating the news media's exercise of editorial discretion—and that manifestly includes any attempt to second-guess a TV news program's criteria for hosting two candidates for elective office to debate.

While some in the media advocate more aggressive enforcement of campaign-related speech, they should pay close attention to what aggressive FEC regulation of WCVB's "On the Record" signifies for their own First Amendment rights.

Mr. Goodman, a Republican, was appointed to the Federal Election Commission in October 2013 and elected as chairman in December. The opinions expressed do not necessarily represent the views of the FEC.

On Feb. 13 in St. Paul, Minn., the Eighth Circuit Court of Appeals will hear arguments in Wagner v. Jones. The appeal is procedurally complex. But the legal question at the heart of the original case has potentially far-reaching implications for public and private legal education. To wit, whether a state law-school may deny employment to faculty candidates because of their political beliefs.

In a trial concluded 15 months ago, Teresa Wagner accused the University of Iowa College of Law of violating her First Amendment right of free expression and 14th Amendment right of equal protection under the law when the school's dean, Carolyn Jones, refused to hire her for its legal analysis, writing and research program.

Enlarge Image cat University of Iowa College of Law University of Iowa

Ms. Wagner was hired initially in August 2006 and was serving on a part-time basis as the associate director of the law school's writing center when two full-time positions for legal-writing instructors opened up that fall. She became one of the two finalists for the openings.

She had impressive qualifications. Ms. Wagner had taught legal writing at George Mason University Law School in Virginia, edited three books, practiced as a trial attorney in Iowa, and written several legal briefs, including one in a U.S. Supreme Court case, Stenberg v. Carhart (2000), which struck down a Nebraska law criminalizing partial-birth abortions. The faculty-appointments committee at the University of Iowa College of Law enthusiastically recommended her appointment as a full-time instructor.

There was a catch, however. Teresa Wagner is a pro-life conservative. Her résumé showed prior employment with the National Right to Life Committee and the Family Research Council, both socially conservative organizations in Washington, D.C.

The University of Iowa's law-school faculty, like most law-school faculties, is overwhelmingly liberal. When Ms. Wagner was considered for the job, the law school had only one Republican on its 50-member faculty, according to party registration records obtained from the Iowa Secretary of State, and he had joined the faculty 25 years earlier.

In deciding whether to hire Ms. Wagner, neither her politics nor those of the law school's faculty should have been relevant. Yet the day after the law-school faculty voted to reject Ms. Wagner, in January 2007, Associate Dean Jon Carlson wrote to Dean Jones in an email, "Frankly, one thing that worries me is that some people may be opposed to Teresa serving any role, in part at least because they so despise her politics (and especially her activism about it)." The dean generally follows the results of an all-faculty vote, but precedent at the law school shows that the dean has the discretion to set it aside.

Other than by looking to politics, it is difficult to explain the law school's efforts to avoid hiring Ms. Wagner. One of the full-time legal-writing instructor positions for which she applied went to the other finalist, Matt Williamson, a self-described "off the charts liberal" with one semester of law-school teaching experience, no legal publications and no experience practicing law. He requested to leave his new job at mid-year, but Dean Jones persuaded him to stay. He quit after one year of full-time teaching.

The law school struggled to fill the second instructor vacancy with adjuncts, preferring over Ms. Wagner a former research assistant originally hired fresh out of law school. The research assistant had worked for Prof. Randall Bezanson, a former law clerk to Harry Blackmun at the time Justice Blackmun wrote the decision in Roe v. Wade. Mr. Bezanson (who passed away recently) led the opposition to Ms. Wagner.

She sued in federal court in January 2009. At the trial three years later, the law school's principal defense was that Ms. Wagner had "flunked" her interview when she refused to teach the "analysis" component of the class, which involves methods of legal reasoning. Ms. Wagner disputed the allegation. But the law school destroyed the videotape of her job interview, as court testimony confirmed, within a month of its decision not to hire her.

Faculty emails also contradicted the law school's allegations about her poor interview. For example, shortly after Ms. Wagner's job talk, Prof. Sheldon Kurtz, respected for his work on trusts and estates, emailed Mark Janis, chairman of the faculty-appointments committee: "Great. Lets [sic] hire her." Nevertheless, more than a dozen law professors who took the stand supported the law school's story.

Ms. Wagner convinced the jury that her rights had been violated. After the trial, on Nov. 20, 2012, the jury foreman told the Des Moines Register, "Everyone in that jury room believed she had been discriminated against." But after three days of deliberation, the jury could not agree on whether to hold Dean Jones exclusively responsible.

Presiding Judge William Pratt and his magistrate, Thomas Shields, phoned counsel to say the jury was hung and the case would be retried. However, according to court records, after thanking and discharging the jury, Mr. Shields, in an extraordinary move, called jurors back from the coatroom. Despite the trial having ended, he instructed the foreman to sign a verdict form that next to Count 1 had an "X," indicating that Dean Jones was not liable for a First Amendment violation. Later, Judge Pratt dismissed Count II, the 14th Amendment violation.

Now, with her appeal next week, Ms. Wagner is asking the Eighth Circuit to grant her a new trial.

Since the lawsuit, the law school has hired at least four faculty members who are Republicans, including former Congressman James Leach and the Republican governor's chief legal counsel, Brenna Findley, who was appointed as an adjunct professor. The hirings perhaps gave the school cover from charges of ideological bias during the Wagner affair, but taking such steps just perpetuates the idea that it's proper to subject job candidates to a political litmus test.

Instead, state boards of regents and state legislatures have a responsibility to ensure that their law-school faculties do not discriminate on the basis of political persuasion. Procedural transparency in hiring practices would be a help, beginning with the retention for a reasonable period of all relevant documents, including video recordings of interviews. Private university trustees should implement the same safeguards at their institutions.

Hiring decisions should be based on candidates' merits, including their ability to vigorously present in the classroom and criticize conservative as well as progressive views. If the Eighth Circuit protects Teresa Wagner's constitutional rights, the court will also bolster legal education in America by promoting its depoliticization.

Thomas S Monson is the worldwide leader of the Mormon church Photo: 2009 Getty Images

By John Bingham, Religious Affairs Editor2:26PM GMT 05 Feb 2014

A British magistrate has issued an extraordinary summons to the worldwide leader of the Mormon church alleging that its teachings about mankind amount to fraud. Thomas S. Monson, President of the Church of Jesus Christ of Latter-day Saints has been ordered to appear at Westminster Magistrates’ Court in London next month to defend the church’s doctrines including beliefs about Adam and Eve and Native Americans.

A formal summons signed by District Judge Elizabeth Roscoe warns Mr Monson, who is recognised by Mormons as God’s prophet on Earth, that a warrant for his arrest could be issued if he fails to make the journey from Salt Lake City, Utah, for a hearing on March 14.

In one of the most unusual documents ever issued by a British court, it lists seven teachings of the church, including that Native Americans are descended from a family of ancient Israelites as possible evidence of fraud.

It also cites the belief that the Book of Mormon was translated from ancient gold plates revealed to the church’s founder Joseph Smith by angels and that Adam and Eve lived around 6,000 years ago. The document suggests that asking members of the church to make contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006.

The Church dismissed the summons as containing “bizarre allegations” and signalled that Mr Monson has no plans to attend.

It was issued in response to a private prosecution attempt by Tom Phillips, a disaffected former Mormon who now runs MormonThink a website highly critical of the church.

Under little-used legal procedures, people who say they have evidence that someone has committed a crime can ask a magistrate to issue a summons requiring them to attend a court hearing. The district judge would then decide whether or not to proceed with a case or dismiss it. Similar procedures were used by Palestinian activist in 2009 to have an arrest warrant issued against the Israeli justice minister Tzipi Livni, leading to an international diplomatic incident.

Two virtually identical summonses were sent to Mr Monson naming Stephen Bloor, a former Mormon bishop, and Christopher Denis Ralph, another former convert, as victims of the alleged fraud. It argues that by being persuaded to pay a tithe to the church on the basis of teachings which might not be true, the president could have committed fraud. Among teachings it singles out as suspect are the assertion that the Book of Mormon was “translated from ancient gold plates by Joseph Smith [and] is the most correct book on Earth and is an ancient historical record” and that the Mormons’ Book of Abraham, was translated from Egyptian papyri by Joseph Smith. Other beliefs cited include the assertion that “Native Americans are descended from an Israelite family which left Jerusalem in 600 BC” and that “all humans alive today are descended from just two people who lived approximately 6,000 years ago.”

The document then demands that Mr Monson appears in court number six at Westminster Magistrates’ Court on Marylebone Road at 10am on March 14 or face arrest. Malcolm Adcock, the church’s public affairs director for Europe, said: “The Church occasionally receives documents like this that seek to draw attention to an individual’s personal grievance or embarrass church leaders. These bizarre allegations fit into that category.”

But Mr Phillips said: “The head of the Mormon Church has been summoned to a court to answer allegations of fraud – I don’t think a judge at Westminster Magistrates’ Court would sign off on ‘bizarre allegations’ – I certainly hope they never would. This has been a very serious matter that has been looked at in extreme detail.”

Obama vs. First AmendmentBy DICK MORRISPublished on TheHill.com on February 18, 2014Printer-Friendly VersionThe Federal Communications Commission is about to launch a direct assault on the freedom of the media to cover news as it chooses. The program, called the Multi-Market Study of Critical Information Needs, involves requesting information from all radio and TV stations, as well as newspapers, about how they cover news, who decides what gets covered, and what criteria they use in the decision. The FCC will also conduct a "content analysis" of one week's coverage to decide whether each of eight "critical" categories of news is being given adequate attention.

While the results of the study will not impose mandatory changes on the media's news decisions, the "recommendations" from the FCC will carry the weight of law because all radio and television stations must come up for license renewal every eight years. Newspapers, which are clearly outside the jurisdiction of the FCC, are under no such constraint, but will be evaluated anyway.

The study is in response to another study, conducted by the Annenberg School for Communication and Journalism at the University of Southern California, which found that minorities were not being adequately served by media news and that critical areas were being under covered.

No surprise, the "critical areas" include such liberal topics as the environment and economic opportunity.

The first market to undergo a grilling will be Columbia, S.C., but all areas of the country are slated for scrutiny

Surveys will be distributed to reporters, news editors, assignment editors, publishers, owners, on-air reporters, film editors and other station or newspaper staff. These are the questions they will ask:

• What is the news philosophy of the station?

• Who else in your market provides news?

• Who are your main competitors?

• How much news does your station air every day?

• Is the news produced in-house or is it provided by an outside source?

• Do you employ news people?

• How many reporters and editors do you employ?

• Do you have any reporters or editors assigned to topic "beats"? If so, how many and what are the beats?

• Who decides which stories are covered?

• How much influence do you have in deciding which stories to cover?

• How much influence do reporters and anchors have in deciding which stories to cover?

• How much does community input influence news coverage decisions?

• How do you define critical information that the community needs?

• How do you ensure the community gets this critical information?

• Have you ever suggested coverage of what you consider a story with critical information for your customers (viewers, listeners, readers) that was rejected by management? If so, can you give an example? What was the reason given for the decision? Why do you disagree?

These intrusive questions, which pry into station politics and policies, can only send a chilling message to radio and television outlets.

If radio and television stations do not do a good job of reporting news, their ratings will suffer. If they do not do a good job of reporting the news the government wants them to report, that's none of the government's business.

The day is long gone when communities were dependent on one radio or one television station or one newspaper for their news. The Internet and cable television have changed all that. But the FCC acts as if the new age had not dawned.

Is it that they don't know? Or is it, more likely, that they want to push the media to cover the Obama administration agenda?

As this project goes forth, Sen. Bernie Sanders (I-Vt.) is circulating a petition in Congress to urge the networks to devote more time to covering climate change.

On Cinco de Mayo 2010, a number of students at a California school came toclass wearing American flag apparel. Citing a history of conflict betweenAnglo and Latino students, however, the school cracked down on the Anglos,demanding that they cover up the flags or go home. On Thursday, a three-judgepanel of the Ninth Circuit Court ruled unanimously that the school did notviolate students' free speech rights. The ruling is a "classic 'heckler'sveto,'" says legal blogger Eugene Volokh(http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/27/not-safe-to-display-american-flag-in-american-high-school/),"because behavior that gets rewarded gets repeated. The school taught itsstudents a simple lesson: If you dislike speech and want it suppressed, thenyou can get what you want by threatening violence against the speakers."

Steven Hayward called it the "Best. Supreme Court. Brief. Ever."http://www.powerlineblog.com/archives/2014/03/best-supreme-court-brief-ever.phpSteven Driehaus is the sore-loser Democrat who is suing Susan B. Anthony List for independent ads they ran in the election that cost Driehaus his Ohio congressional seat. I can’t imagine he has much of a case, but it’s made it to the high court anyway. O’Rourke and his co-authors, which include the Cato Institute’s Ilya Shapiro, defend the idea that opinionated speech is not only protected under the First Amendment, but essential to democracy. Such as:

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular- humanist professors of Chicano studies. . .

While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises.

Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer- funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.

George Washington, a devoted Episcopalian, wrote that, should we want our Liberty secure and freedom to endure, we must "acknowledge the providence of Almighty God, obey his will, be grateful for his benefits, and humbly implore his protection and favors." He also said of faith and the American experiment, "The Hand of providence has been so conspicuous in all this, that he must be worse than an infidel that lacks faith, and more than wicked, that has not gratitude enough to acknowledge his obligations."

John Adams likewise wrote, "[R]eligion and virtue are the only foundations, not of republicanism and of all free government, but of social felicity under all government and in all the combinations of human society."

So why is it so appalling to today's crop of leftists that a city council might follow this great American tradition and begin its session with prayer? Or that students speaking at a graduation might wish to acknowledge the role of God in their lives? Whatever the reason, the public expression of faith is a key battle in our culture.

In fact, prayer before legislative sessions is at the core of numerous legal battles around the country. On Monday, just four days after the National Day of Prayer, the Supreme Court ruled that prayer before a city council meeting in Greece, New York, is constitutional. Five justices agreed that such prayers do not violate the First Amendment prohibition against the establishment of religion, and are an important part of American tradition dating all the way back to our Founders. The Court ruled similarly in another case 30 years ago.

Unfortunately, four justices agreed with the plaintiffs -- two women claiming offense because praying clergy are predominantly Christian in a predominantly Christian town. And the decision itself overturned a Second Circuit ruling in favor of the plaintiffs.

Writing for the Court's minority, Obama appointee Elena Kagan insisted that any public prayer must be completely nonsectarian and generic. Generally worthless, in other words. But worse, her proposed tectonic shift in constitutional interpretation would essentially require that politicos pre-approve prayers to ensure compliance with leftist political correctness.

That political correctness, says columnist Bill Murchison, is central to "progressive" philosophy. "The secularism of the Western cultural and political left -- its persistent indifference to religious faith -- may be its most conspicuous attribute. Having written off God for most worldly purposes, liberals can proceed to the construction of their own snug, secure, non-religious vision of human affairs and relationships. No unchangeable realities, no moral systems; just good old free-floating politics, founded on polls, warm thoughts and law review articles."

Justice Anthony Kennedy addressed Kagan's nonsense in his majority opinion, writing, "The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."

Kennedy also wrote, "As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society." Heaven knows we could use a bit more of that. Furthermore, Kennedy said, "That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

Indeed, public prayer didn't create a constitutional crisis for those who wrote and ratified it. That should tell us all we need to know.

Harry Reid on Thursday began the Senate Democratic push to rewrite the First Amendment to limit political speech. That display couldn't be more out of step with federal judges, who late Wednesday declared much of Wisconsin's campaign-finance law to be unconstitutional. This is a big win for open political debate.

We've been reporting how prosecutors in Wisconsin have abused campaign-finance law to silence conservative issue-advocacy groups, and we are winning that battle in court. But Wednesday's ruling, by a unanimous panel of the Seventh Circuit Court of Appeals, takes apart root and branch the regulations that the prosecutors claim as their justification.

In Wisconsin Right to Life v. Barland, Judge Diane Sykes writes for the court that the state's "labyrinthian" speech regulation "violates the constitutional limits on the government's power to regulate independent political speech." The 88-page opinion, joined by Judges Richard Posner and Joel Flaum, is a tour de force that instructs state regulators in Supreme Court precedents holding that "ordinary political speech about issues, policy, and public officials must remain unencumbered."

Wisconsin's speech police have a long history of overreach despite periodic brush-backs by the courts, including decisions in 1999 and 2002 striking down the state's regulation of issue ads. Yet in 2010 the state Government Accountability Board wrote a new rule to treat any ad that mentioned a candidate within 30 days of a primary election or 60 days of a general election as express advocacy. That definition improperly regulated many independent groups as though they were political action committees.

Wisconsin Right to Life sued to challenge those and other rules with the help of lawyer James Bopp. Among the laws struck down on Wednesday are the state's ban on corporate political spending (still on the books despite the Supreme Court's 2010 Citizens United decision), the cap on how much money a corporation can spend on fundraising for a related political committee, and the requirement for lengthy disclaimers on independent political ads.

The ruling makes clear that the indecipherable morass of Wisconsin campaign law is itself a burden to free speech, inhibiting in particular the small players who can't afford campaign-finance lawyers. Judge Sykes goes out of her way to tell lawmakers to get with the program because Wisconsin law is "in serious need of legislative attention to account for developments in the Supreme Court's jurisprudence protecting political speech."

Lawmakers had the opportunity to fix the mess last summer but backed off under pressure from the busy-bodies at the Government Accountability Board. That's an odious coincidence since we now know the GAB has been assisting prosecutors in their secret investigation of independent conservative groups. Judge Sykes's opinion specifically mentions that Milwaukee County District Attorney John Chisholm is a named defendant in Wisconsin Right to Life and thus subject to its injunction. Mr. Chisholm has been leading the illegal harassment of conservative groups.

Governor Scott Walker and his fellow Badger State Republicans have been notably timid in defending the free-speech rights of their conservative allies. They should take a sip of courage from Judge Sykes's opinion and cashier their campaign laws that have become excuses for inhibiting political speech that politicians don't like.

The Democratic Assault on the First AmendmentCongress has too much power already; it should not have the power to silence citizens.By Ted CruzWSJJune 1, 2014 6:35 p.m. ET

For two centuries there has been bipartisan agreement that American democracy depends on free speech. Alas, more and more, the modern Democratic Party has abandoned that commitment and has instead been trying to regulate the speech of the citizenry.

We have seen President Obama publicly rebuke the Supreme Court for protecting free speech in Citizens United v. FEC; the Obama IRS inquire of citizens what books they are reading and what is the content of their prayers; the Federal Communications Commission proposing to put government monitors in newsrooms; and Sen. Harry Reid regularly slandering private citizens on the Senate floor for their political speech.

But just when you thought it couldn't get any worse, it does. Senate Democrats have promised a vote this year on a constitutional amendment to expressly repeal the free-speech protections of the First Amendment.

You read that correctly. Forty-one Democrats have signed on to co-sponsor New Mexico Sen. Tom Udall's proposed amendment to give Congress plenary power to regulate political speech. The text of the amendment says that Congress could regulate "the raising and spending of money and in-kind equivalents with respect to federal elections." The amendment places no limitations whatsoever on Congress's new power.

Two canards are put forth to justify this broad authority. First, "money is not speech." And second, "corporations have no free speech rights."

Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine's "Common Sense" required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.

As for the idea that the Supreme Court got it wrong in Citizens Unite d because corporations have no First Amendment rights, that too is demonstrably false. The New York Times NYT 0.00% is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.

Proponents of the amendment also say it would just "repeal Citizens United" or "regulate big money in politics." That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.

Indeed, the text of the amendment obliquely acknowledges that Americans' free-speech rights would be eliminated: It says "[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.

If this amendment were adopted, the following would likely be deemed constitutional:

Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.

Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.

Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.

One might argue, "surely bloggers would be protected." But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not "covered journalists."

One might argue, "surely movies would be exempt." But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.

One might argue, "surely books would be exempt." But the Obama administration, in the Citizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.

The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.

Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There's no chance that Sen. Udall's amendment will clear either hurdle. Still, it's a reflection of today's Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.

John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: "In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start."

Mr. Cruz, a Republican senator from Texas, serves as the ranking member on the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights.

Supreme Court Rejects Appeal From Reporter Over Identity of Source The Supreme Court on Monday turned down an appeal from James Risen, a New York Times reporter facing jail for refusing to identify a confidential source.The court’s one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said is an imperative need to secure evidence in a national security prosecution and what journalists said is an intolerable infringement of press freedom.The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book “State of War.”READ MORE »http://www.nytimes.com/2014/06/03/us/james-risen-faces-jail-time-for-refusing-to-identify-a-confidential-source.html?emc=edit_na_20140602

The Wall Street Journal has lately been performing a real public service by chronicling the efforts of Wisconsin lawmakers, prosecutors and some judges to basically obliterate the First Amendment as it pertains to political speech. No one has passed a law saying you can be arrested for what you say. The usurpation of liberty never works like that. Rather, a complicated web of bureaucracies and legal authorities have established regulations in the name of "fairness" or "good goverment" or "transparency" or what-have-you.

The real-life impact is set traps for advocacy groups who aren't trying to do anything but speak and be heard, and in the process are liable to find themselves in trouble with the law because they failed to follow a Byzantine set of rules and restrictions established by the very politicians who don't want them speaking too effectively - or spending too much of their own money to advocate things that might not be in these politicians' best interests.

The particular rules in play here concern "collaboration" between independent advocacy groups and political candidates. To a normal person, that's the simple exercise of your free-speech rights. To the political class, that's cause for a jailin':

It’s important to understand that this political attack on “coordination” is part of a larger liberal campaign. The Brennan Center—the George Soros-funded brains of the movement to restrict political speech—issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.The report raises alarms that independent expenditures have exploded since the Supreme Court’s 2010 Citizens United decision, as if trying to influence elections isn’t normal in a democracy. The political left wants to treat independent expenditures as a “contribution” to candidates limited under campaign-finance law to $2,600 per election. That would essentially ban independent issue advocacy, since you can’t buy much air time for $2,600.

Such regulation is also an assault on freedom of association. If like-minded people can’t pool resources to influence elections, they are essentially shut out of modern political debate.

All the more so if citizens who do join together can be harassed by regulators or prosecutors. That’s clearly the intention of the Brennan speech enforcers, who survey state efforts to regulate speech and urge others to pick up the truncheon.

By the way, lest you try to blame Gov. Scott Walker for this, be aware that his allies have been the fattest targets for Democrat prosecutors trying to use these regulations to control who can say what in Wisconsin.

But Wisconsin is far from the only state where politicians are trying this gambit. IllinoisPolicy.org reports that politicians in their state are taking direct aim at the First Amendment, under the guise of limiting evil corporate spending on political races:

On Thursday, the Illinois Senate’s Executive Committee passed a resolution by a vote of 11-4 that calls for a constitutional convention to amend the U.S. Constitution to overturn the Supreme Court’s decision in Citizens United v. Federal Election Commission.

The Citizens United decision simply held that the First Amendment prohibits the government from limiting anyone’s independent political speech. The court held that, although the government can place certain limits on campaign contributions, it cannot limit how much someone spends independently to speak (or write) about a candidate or political issues.

And that makes perfect sense. If the right to free speech means anything, it must mean that you are free to speak as much as you want, as long as you’re spending your own money.

Incumbent officeholders don’t like that, though, because they would rather not face unlimited criticism.

This sentiment is shared by party leaders on both sides of the aisle in Illinois. This week alone, Senate President John Cullerton co-sponsored the Senate resolution, while House Minority Leader Jim Durkin lashed out against independent groups and said they should face greater legal restrictions.

It’s not surprising that Cullerton and Durkin in particular would feel that way. Along with House Speaker Mike Madigan and Senate Minority Leader Christine Radogno, they are the only people in the state who are legally allowed to direct as much money as they want to the political campaigns of their choosing, through the political parties and “legislative caucus committees” they control. Everyone else in Illinois is limited in how much they can give by the campaign-contribution caps the General Assembly passed in 2009.

Meanwhile, as we told you yesterday, Christian pastors in C'oeur D'Aline, Idaho are being threatened with fines and jail time unless they agree to perform gay "weddings." Once again, no one is going to pass a law outlawing Christianity. They know they can't get away with that. Instead, they impose requirements - ostensibly in opposition to "discrimination" or whatever - that threaten you with sanctions if you run your business in a way that actually adheres to your faith. The impact is the same. You have freedom to practice religion in theory, but in reality you can only practice it to the extent that the state deems acceptable.

And of course, in Houston, the city is attempting to subpoena the sermons of local pastorslest they find they criticized the lesbian mayor or a "human rights ordinance" the mayor favored. This is ostensibly about enforcing election laws in relation to churches' tax exemptions, but that's a crock. It's about outlawing speech politicians don't like.All of this is the inevitable result of a government that grows in scope and influence because a majority of the electorate expects it to solve every problem that ever existed, even if the problems only affect politicians.

If politicians don't like others spending money to criticize them, too bad. If a Christian wedding chapel doesn't want to perform a gay "wedding," then the homosexuals need to go ask someone else. (And the same applies to bakers, florists, photographers, etc.) We don't need a system in which they react to such a rebuke by complaining to authorities. If pastors encourage people to vote in a certain way, then they do. No one needs to do anything about it.

Of course, the tax code becomes an issue here. The tax code is so onerous that organizations like churches can't hope to survive unless they get an exemption, and applying for the exemption gives the IRS de facto control over how they operate. The solution is not to change the rules governing exemptions. It's to throw out the entire tax code and adopt a new, simple, non-oppressive one that doesn't require anyone to get an exemption.

The bottom line is this: A government so big that it can provide you with everything puts you in a position where you need things from government, and then you're at the mercy of your provider to set rules you can live with. A government that thinks it's responsible for solving every problem will go ahead and "solve" the "problem" presented by your exercise of your rights.

It used to be that liberals claimed to love the First Amendment, but that was before it threatened their power. People of faith especially threaten their power because we answer to a power higher than them, so they try to use their rule-making authority to bring us under control.

If the First Amendment is a casualty, well, that was only valuable to them when it was useful to them. And when you think about it, the same is true of you.

You know, you just might like Dan's books too! Go here to get his series of Christian spiritual thrillers - Powers and Principalities, Pharmakeia and Dark Matter - in print or e-book form, or read his teaching on spiritual matters. You can follow all of Dan's work by liking his page on Facebook.

How to Fight the Campus Speech Police: Get a Good LawyerThat’s what student Daniel Mael had to do after Brandeis charged him with ‘harassment’ in a dispute over Israel.By Sohrab AhmariJan. 2, 2015 6:34 p.m. ET411 COMMENTS

Rolling Stone magazine in November published a 9,000-word account of a horrific gang rape alleged to have occurred in 2012 at a University of Virginia fraternity. The story triggered a national outcry. UVA administrators pre-emptively suspended all fraternal activities on campus, effectively tarring an entire class of students for maintaining a culture of rape and impunity.

Then the original story collapsed. The confusion and anger that followed was a teachable moment about campus frenzies and baseless moral panic. But the episode also threw into high relief another facet of modern higher education: university administrators who, in their eagerness to mollify critics, trample students’ rights and in the process lives and reputations.

Often students from unpopular groups and those who hold unpopular views find themselves alone, facing zealous administrators at closed-door disciplinary hearings. In these places the basic rights of Americans—including the right to counsel, due process, the presumption of innocence and even free speech—don’t apply.

That was the predicament faced by Daniel Mael, a senior majoring in business at Brandeis University near Boston. The 22-year-old native of Newton, Mass., is on the honor roll and has immersed himself in student life, intramural sports and Brandeis’s Orthodox Jewish community. As a student journalist, he has published articles in national outlets.

The problem: Mr. Mael is a pro-Israel man of the right on a campus increasingly hostile to conservatism and the Jewish state. The other problem: The Brandeis administration, as at so many colleges, is more committed to shielding students’ political sensitivities from “harassment” than challenging their minds. Brandeis administrators define harassment so broadly that almost any student could be guilty at any time.

Speaking by phone while on winter vacation in Israel this week, Mr. Mael says: “They try to intimidate students into being silent, in the interest of people’s feelings not being hurt, rather than encourage debate.”

In fall 2013, a public dispute about Israel broke out between Mr. Mael and Eli Philip, another Brandeis student and a leader of the campus affiliate of J Street, an advocacy outfit that describes itself as “pro-Israel, pro-peace.” In the course of the debate Mr. Philip’s feelings were hurt—“then all hell broke loose,” Mr. Mael says. The result was a yearlong disciplinary saga that would threaten his future.

Yet unlike many students in this situation, Mr. Mael fought back, eventually retaining top-shelf legal counsel. The legal record generated by the case, now exclusively obtained by the Journal, shines a rare light on the hidden realm of campus discipline.

Like most harassment claims, the one Mr. Philip brought against Mr. Mael arose from actions and counteractions over which the two parties disagree. On Oct. 14, 2013, two campus pro-Israel organizations, the Brandeis Israel Public Affairs Committee and Stand With Us, hosted Barak Raz, a former spokesman for the Israel Defense Forces, or IDF.

As he wrote in a contentious Facebook exchange with Messrs. Mael and Raz and other students the next day, Mr. Philip, then a junior, said he “did walk in late, and did not hear the beginning and framing” of Mr. Raz’s lecture. Then Mr. Philip posed a question about the checkpoints the IDF operates in the Palestinian territories. “Motivated by deep frustration, the question was not asked calmly,” Mr. Philip would write in an op-ed about the incident published more than a month later in the Jewish Exponent, a Philadelphia periodical. (Mr. Philip didn’t respond to an email request for comment.)

Mr. Mael, also a junior at the time, says Mr. Philip was “particularly obnoxious” and “disrespectful” toward the speaker, behavior that Mr. Mael says continued online the next day, when, during the same Facebook exchange, Mr. Philip accused Mr. Raz of having “lie[d] to a roomful of students.” Mr. Mael says he decided to hold his political opponent accountable by challenging him in the university’s marketplace of ideas, including by publishing articles and circulating petitions.

Mr. Philip interpreted this as harassment, and in a Dec. 9, 2013, complaint to Brandeis administrators, he presented charges under the university code of conduct. Mr. Philip said in his written complaint that at a lunch meeting two days after the IDF event, Mr. Mael “accused me of behavior unfitting a Jewish soul” and of harboring “deep-seated ‘evil inclinations.’ ” Mr. Mael, Mr. Philip went on, “informed me that I damaged the Jewish community, that I should resign from my position as student leader, and that he must take action to restore the Jewish community.”

Mr. Mael says his words were misquoted and taken out of context, but that’s beside the point. Religious-oriented conversations, however passionate, don’t amount to harassment, a principle that the U.S. Equal Opportunity Commission has set forth regarding workplaces and one even more relevant on college campuses, where philosophical disputation is supposed to be part of the air students breathe. Nor did the encounter amount to conduct with “the purpose or effect of unreasonably interfering” with Mr. Philip’s “education or work performance,” as the Brandeis student code defines harassment. The students, after all, were having lunch.

Mr. Philip’s filing also complained that Mr. Mael attended J Street meetings. “His presence, sitting in the back of the room and typing notes after each comment, was uncomfortable and intimidating.” Blaming Mr. Mael’s influence, Mr. Philip noted that “the Orthodox community stopped speaking to me and routinely ignored me.” Also: “Getting lunch and dinner at the kosher section in Sherman dining hall became an uncomfortable experience.”

A responsible university administrator might have counseled Mr. Philip to take a deep breath and develop thicker skin for the slings and arrows of adult life. But on Dec. 5, 2013, Dean of Students Jamele Adams summoned Mr. Mael to his office, without informing him about the purpose of the meeting, the student says: “I was handed a copy of the Rights and Responsibilities handbook and told to familiarize myself with it because Eli was considering certain actions.”

Mr. Mael says he was also advised to avoid using social media—an odd discouraging of his free-speech rights and a hint of what lay ahead as the administration picked sides in the dispute.

For months, though, nothing happened. Mr. Philip went to Morocco for a semester abroad, and during that period Mr. Mael recalls he had “nothing to do with the dean.” He pressed on with his campus activism, helping to draw national attention to the Brandeis decision in April to withdraw its offer of an honorary doctorate to human-rights activist Ayaan Hirsi Ali.

Then, three months ago, almost a year since the original incident, Mr. Adams re-entered Mr. Mael’s life. Again he was summoned to the dean’s office without knowing the Oct. 8 meeting’s purpose. “I’m told that there are charges against me under bullying, harassment and religious discrimination,” Mr. Mael recalls. “And I’m told that I have to give a response—guilty or not guilty—ideally within 48 hours.” A guilty determination could have led to his suspension or expulsion from school. Since this was around the Jewish holiday of Sukkot, Mr. Mael was given about a week to reply.

Crucially, Mr. Mael wasn’t allowed to keep a copy of the complaint. Dean Adams told him that this was routine “procedure,” Mr. Mael says. “How am I supposed to tell my parents that I’m being brought to court and by the way I don’t know what the charges are?” Mr. Mael recalls thinking. “This is antithetical to the values of our Constitution.”

In a panic after the meeting with Dean Adams, Mr. Mael consulted his friend Noah Pollak, of the Washington-based Emergency Committee for Israel, which retained the Covington & Burling law firm to act on his behalf. Yet when Mr. Mael’s lawyer initially corresponded with university counsel, he was informed that “parties involved in the conduct process are not permitted to engage legal counsel to act or speak on their behalf.”

Covington & Burling paid no heed. With the deadline approaching and still without a copy of the complaint, Mr. Mael opted to plead not guilty and request a full hearing before a jury of his fellow students.

A ndrew Flagel, Brandeis’s senior vice president for students and enrollment, wouldn’t discuss the Mael case, citing federal privacy regulations, but said there is no university policy to advise students to curtail their speech online while a disciplinary case is pending. Mr. Flagel added that it is university practice not to provide the accused with a copy of a complaint but added that this is “one of the things we’ve been evolving.” Regarding the right to counsel, Mr. Flagel said: “This is not a legal proceeding, so your assumption that there is a right is not in evidence.”

By the end of October, Mr. Mael was finally provided a copy of the charges he would face. And Covington & Burling submitted to Brandies two lengthy legal memoranda blasting violations of Mr. Mael’s rights. One letter concluded: “We reserve all rights on behalf of Mr. Mael, including the right to assert claims for the reputational and other harms caused by the baseless allegations at the heart of this proceeding.” In other words: See you in court.

On Oct. 27 Dean Adams informed Mr. Mael via email that the “allegations against you will not be adjudicated through our Student Conduct Board. The accuser has withdrawn from the option to do so and therefore this case should be considered closed and without determination of fault or sanction. . . . Thank you for your cooperation.”

Thus closed a window on life at American universities, where administrators are only too happy to indulge the objections of students whose feelings are bruised in the combat of ideas. Mr. Mael considers himself fortunate not to be facing expulsion. “It’s imperative to understand that if I didn’t have extremely qualified counsel,” he says, “I would be under duress.”

As it happens, Brandeis University is named for the U.S. Supreme Court Justice Louis Brandeis, a free-speech champion and ardent Zionist.

A unanimous Supreme Court on Tuesday ruled in favor of a Muslim convict who wanted to keep a half-inch beard on religious grounds in violation of an Arkansas prison rule, and at least the conservative Justices were principled.

Recall that five Justices voted in favor of religious liberty in last year’s Hobby Lobby case on ObamaCare. The four liberals dissented, with Justice Ruth Bader Ginsburg railing that forcing religious-minded business owners to offer insurance for abortifacients was no violation of their religious liberty under the law. Justice Ginsburg joined the majority in this case, writing in a brief concurrence that the beard wouldn’t “detrimentally affect others who do not share” the convict’s beliefs. We couldn’t find that distinction in the statute at issue, but Justice Ginsburg had to say something to rebut the appearance of political, er, judicial hypocrisy. Justice Samuel Alito wrote both opinions, showing admirable consistency.

“Common ground” is vastly overrated as a political virtue, and USA Today demonstrates why. In a pair of the paper’s recent op-eds one finds common ground between an Islamic supremacist and the dean of an American journalism school. Both men agree that free speech should be severely curtailed in a way that would empower violent extremists.Iraqis burn the French flag. ENLARGEIraqis burn the French flag. Photo: Associated Press

Two weeks ago this column faulted USA Today for its choice of writer to rebut the paper’s pro-free-speech editorial the day after the Charlie Hebdo massacre. The “opposing view” came from Anjem Choudary, described in his shirttail bio as “a radical Muslim cleric in London and a lecturer in sharia.”

Many of our readers supported USA Today’s editorial decision on the ground that it is a public service to inform readers of the true attitudes of Islamic radicals, too often whitewashed by the media and political leaders. We acknowledged the next day that they had a point.

But what can one say about this week’s column by DeWayne Wickham, dean of Morgan State University’s School of Global Journalism and Communication in Baltimore? Choudary and Wickham make nearly identical arguments. Their columns are titled, respectively, “People Know the Consequences” and “ ‘Charlie Hebdo’ Crosses the Line.” Neither man expressly endorses the terrorists’ actions, but both strongly imply the victims had it coming because they offended their killers’ religious sensibilities.

Choudary: “Because the honor of the Prophet is something which all Muslims want to defend, many will take the law into their own hands, as we often see. Within liberal democracies, freedom of expression has curtailments, such as laws against incitement and hatred. . . . So why in this case did the French government allow the magazine Charlie Hebdo to continue to provoke Muslims, thereby placing the sanctity [sic] of its citizens at risk?”

Wickham: “If Charlie Hebdo’s irreverent portrayal of Mohammed before the Jan. 7 attack wasn’t thought to constitute fighting words, or a clear and present danger, there should be no doubt now that the newspaper’s continued mocking of the Islamic prophet incites violence. And it pushes Charlie Hebdo’s free speech claim beyond the limits of the endurable.”

Oddly, Wickham frames his argument in terms of First Amendment law, which, as he acknowledges, doesn’t apply in France. “Given the possible ripple effects of Charlie Hebdo’s mistreatment of Islam’s most sacred religious figure,” he writes, “at least people in this country should understand the limits America’s highest court has placed on free speech.”

To which one might add: especially people in this country who take it upon themselves to educate their fellow citizens, whether on campus or in the pages of a national newspaper. Wickham knows something about First Amendment law—but only enough to make an embarrassing show of how much he doesn’t know.

Wickham’s argument rests on two doctrines from early-20th-century First Amendment law: “clear and present danger” (Schenck v. U.S., 1919) and “fighting words” (Chaplinsky v. New Hampshire, 1942). It is ludicrous to suggest that either doctrine would justify censoring a magazine’s irreverent depictions of Muhammad.

It is doubtful that Schenck is even good law anymore. “The Supreme Court hasn’t used the ‘clear and present danger’ test for First Amendment cases in decades,” notes HotAir.com blogger “AllahPundit”:

The test now for inflammatory speech is the Brandenburg test, a strciter [sic] standard that allows the state to criminalize incitement only in narrow circumstances—when the speaker intends to incite violence and violence is likely to quickly result. Charlie Hebdo’s Mohammed cartoons may have met the “likely” prong of that test but they sure didn’t meet the “intent” part.

We discussed Brandenburg v. Ohio (1969) in last Friday’s column. There are additional reasons to think the Brandenburg doctrine would be inapplicable in defending a hypothetical effort to censor Charlie Hebdo. Brandenburg dealt with speech that advocated violence, something Charlie Hebdo has never to our knowledge done. And the incitement whose prospects the justices weighed and dismissed was of violence by supporters of the speaker—in Brandenburg, a Ku Klux Klan leader—not of an angry or violent reaction from opponents of his viewpoint.

The fighting-words doctrine, which is still good law, would be inapplicable for overlapping reasons. Fighting words have in common with incitement that a necessary element of their definition is the instantaneity of their effect. In Chaplinsky, Justice Frank Murphy defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The key words here are “utterance” and “immediate.” To put it in laymen’s terms, if you encounter a stranger on the street and insult him—in Chaplinsky’s case by shouting, “You are a goddamned racketeer!”—you can’t escape prosecution by claiming you were just exercising your right to free speech and he started it by throwing the first punch.

One can imagine a case in which a Charlie Hebdo caricature would constitute fighting words (albeit of a symbolic nature): if, say, a latter-day Chaplinsky taunted a Muslim on the street by waving a copy of the magazine and a fight ensued, both men could be booked for a breach of the peace. But the publication of offensive words or images is not fighting words. In fact, Chaplinsky had been handing out leaflets whose substantive message was similar to the insult he uttered (“denouncing all religion as a ‘racket’ ”). He was cited only for the spoken provocation.

The massacre at Charlie Hebdo was nothing at all like a street fight or a riot. It was a carefully premeditated act of mass murder. To cite it as a justification for censorship is not just misguided but monstrous. In the months after 9/11 it became a cliché that if the government took this or that action in an effort to counter terrorism, “the terrorists will have won.” In this case, if Choudary and Wickham had their way the terrorists really would win—which is to say that they would succeed in their goal of suppressing by force criticism of or irreverence toward Islam.

Call it the assassin’s veto. And there is no principled basis to apply such a doctrine only in cases of Islamic supremacist violence. Martin Luther King and other civil-rights leaders were assassinated by white supremacists angry over the things the victims had said. By Wickham’s logic, that would have justified government censorship of speech in favor of civil rights. If the courts adopted the Wickham doctrine, extremists of all stripes would have a powerful incentive to kill.

There’s more. In citing the outdated clear-and-present-danger doctrine, Wickham does not specify its object—i.e., the answer to the question: Clear and present danger of what? In Schenck, Justice Oliver Wendell Holmes did not limit the answer to violence, or to panic (Wickham tiresomely cites Holmes’s dicta about falsely shouting “Fire” in a crowded theater).

Here is the relevant passage in full: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” That is sweeping enough to include speech encouraging the violation of any valid law.

In Schenck, the “substantive evil” in question was the evasion of the military draft during World War I. The case upheld the conviction of a Socialist Party official for sending antiwar leaflets through the mail. If the clear-and-present-danger doctrine applied today—or at the time of the civil-rights movement—it would justify arresting and convicting people for encouraging, even indirectly, nonviolent civil disobedience or other unlawful protest tactics.

Perhaps one can mount a defense of the Wickham piece similar to the one our readers offered of the Choudary one. If one takes Wickham’s views as representative of the attitudes of American academia—a proposition that may be too sweeping but is not altogether outlandish—then it is in the public interest to expose them. Perhaps the debate we ought to be having is whether there is any reason for journalism schools to exist if they’re run by people with so little regard for free expression.

Notable & Quotable: George WillFree speech has never been, in the history of our republic, more dangerously threatened than it is now.April 20, 2015 8:08 p.m. ET

From columnist George F. Will’s keynote address at the inaugural Disinvitation Dinner, hosted in New York City on April 15 by the William F. Buckley, Jr. Program at Yale to honor those whose invitations to speak at U.S. universities were retracted because of their views:

Free speech has never been, in the history of our republic, more comprehensively, aggressively and dangerously threatened than it is now. The Alien and Sedition Acts arose from a temporary, transitory fever and were in any case sunsetted and disappeared. The fevers after and during the First World War and in the early culture war era also were eruptions of distemper rooted in local conditions and local issues bound to disappear, which they did.

Today’s attack is different. It’s an attack on the theory of freedom of speech. It is an attack on the desirability of free speech and indeed if listened to carefully and plumbed fully, what we have today is an attack on the very possibility of free speech. The belief is that the First Amendment is a mistake. . . .

Yesterday the Democratic Party, the oldest political party in the world, the party that guided this country through two world wars and is more responsible than any other for the shape of the modern American state—the Democratic Party’s leading and prohibitively favored frontrunner candidate for the presidential nomination announced four goals for her public life going forward, one of which is to amend the Bill of Rights to make it less protective. It’s an astonishing event. She said that she wants to change the First Amendment in order to further empower the political class to regulate the quantity, content and timing of political speech about the political class—and so far as I can tell there’s not a ripple of commentary about this on the stagnant waters of the American journalistic community.

Wisconsin’s attempt to criminalize political speech is destined to become a case study on the use of election law to silence political opponents. Whether it is a cautionary tale or a blueprint for nationwide imitation is now up to the Supreme Court.

On Friday the Justices will consider whether to hear O’Keefe v. Chisholm, a Section 1983 civil-rights lawsuit brought by Wisconsin Club for Growth director Eric O’Keefe against Milwaukee District Attorney John Chisholm and other prosecutors. The suit charges the prosecutors with a multi-year campaign to silence and intimidate conservative groups whose political speech they don’t like.

The Supreme Court has made great strides in restoring First Amendment protections, and the Wisconsin case will test whether citizens can seek federal recourse when they are targeted and investigated for exercising those rights.

In 2012 Mr. Chisholm and, later, special prosecutor Francis Schmitz began investigating the Wisconsin Club for Growth and dozens of other conservative outfits based on a theory that the groups had illegally coordinated during the 2011 and 2012 recall campaigns against Governor Walker and state legislative leaders. Mr. O’Keefe’s group ran no advertising to advocate for candidates, but prosecutors claimed its independent issue advocacy should be counted as an in-kind contribution to politicians who share their views.

The theory was rejected by Wisconsin Judge Gregory Peterson but not before state law enforcement blanketed conservatives with subpoenas, raided their homes and put the targets under a gag order. For months following the subpoenas and the investigation’s leak to the press, conservative political advocates went silent lest they anger the prosecutors targeting them.

In May 2014, federal Judge Rudolph Randa found in favor of Mr. O’Keefe, writing that the prosecutors are wrong about campaign-finance law. The prosecutors are pursuing criminal charges against the groups, Judge Randa wrote, “for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce.”

The Seventh Circuit Court of Appeals dismissed the case on appeal, but not because it disagreed with Judge Randa on the merits. Acknowledging that the subpoenas were alarmingly broad, the three-judge panel wrote that the Anti-Injunction Act prevents federal courts from intervening in a state criminal investigation due to vague principles of “equity, comity, and federalism.” Judge Frank Easterbrook cast the court’s decision as a victory for state’s rights, but his opinion misjudged the precedents and the investigation’s nasty violation of Mr. O’Keefe’s rights.

Those rights can’t be easily vindicated within the context of Wisconsin law that allows these secret proceedings, and this is where federal relief comes in. Section 1983 was written to allow citizens to enforce federal law when their rights are violated by state officials.

If further evidence were needed that prosecutors mean to stack the deck against conservatives, consider their recent petition seeking the recusal of as many as four of the Wisconsin Supreme Court’s conservative justices from the appeal of Judge Peterson’s ruling. The case continues to meander through the notoriously slow Wisconsin appellate courts, chilling political speech even as elections pass.

Specific injustices aside, the U.S. Justices should also hear the case because it is part of a larger legal effort to subvert their 2010 Citizens United ruling. The game is to use the theory of “coordination,” which allows vast investigations to be instigated on the thinnest evidence, to sweep issue speech back into the regulatory umbrella of campaign-finance law.

The liberal Brennan Center for Justice is pushing regulations coast to coast that would reduce protections for issue speakers and encourage “coordination” probes. The Wisconsin case is an opening for the Court to tell prosecutors and regulators they must tread carefully when rights of free association are involved.

Wisconsin’s prosecutorial machinery has abused the law to silence disfavored political speech. This one is made to order for Supreme Court review.

Roberts’s Rules for JudgesSpecial limits on political speech for ‘the brotherhood of the robe.’April 29, 2015 7:26 p.m. ETWSJ:

The John Roberts Supreme Court has tended to champion free speech, expanding political debate and participation. What a pity, then, that the Chief Justice on Wednesday joined the four liberals to make an exception for judicial elections.

The 39 states where the public votes for judges usually impose speech and fund-raising restrictions on judges and candidates, and 30 prohibit them from personally soliciting campaign funds. In a 2009 Florida primary, Tampa-area lawyer Lanell Williams-Yulee challenged a sitting district judge chosen by a “nonpartisan” judicial selection committee. She lost, likely in part because this process is designed to favor incumbents.

The Florida Bar sanctioned Ms. Yulee anyway. Her crime? Mailing a letter to voters that explained her qualifications and the legal philosophy she would observe as a judge, and asking for donations. In Williams-Yulee v. Florida Bar, she argued the First Amendment vindicates her right to request funds, since the government cannot regulate the content of speech like her letter.

The High Court has long recognized that core political speech—debate about public issues and candidates during elections—deserves the highest protection under the Constitution. Chief Justice Roberts claims to apply such strict scrutiny. But his 5-4 opinion creates a new double standard, because he says “judges are not politicians, even when they come to the bench by way of the ballot.”

Thus the Chief blesses what he concedes is “regulation of speech” to serve the state interest in maintaining public confidence in an impartial judiciary. His conceit is that campaign donations are more compromising to the independence of judges—or to the appearance thereof—than for politicians, even if the Chief admits that “judicial integrity does not easily reduce to precise definition.”

The Florida law is even less coherent than the Chief’s opinion. Judicial candidates are allowed to form committees to solicit donations on their behalf and also to write personal thank-you notes. Why is the wink and nod of fundraising by proxy followed by a private expression of gratitude less a quid pro quo than a general public request like a mass mailer or website?

In a ferocious dissent, Justice Antonin Scalia clobbers the Chief’s judges-are-different sentimentality. He writes that the majority seems to find judicial elections and “the (shudder!) indignity of begging for funds” distasteful, and thus undermines free speech merely to preserve the “saintliness” and “oracular sanctity of judges.” Justice Scalia concludes, “The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.”

Judicial elections will no doubt continue as a policy debate. But free societies are supposed to be able to choose how to hold officials accountable, and states have used the ballot box to do so for judges since 1812. As long as there are elections, there will be campaigns, which require financing to promote ideas and candidates.

Rules like Florida’s appeal to liberals and lawyers because they suppress political competition in the name of “ethics.” Only those inducted into this self-selecting clerisy can take part, denying voters their right to a robust debate. The outsiders who lack connections would most benefit from personal fundraising. Chief Justice Roberts’s bathos about his caste will harm democracy and public confidence in the judiciary for years to come.